Strong Court Ruling Upholds the Artistic License (fwd)

Chris DiBona cdibona at
Sun Aug 17 23:01:29 UTC 2008

Man, talk about artistic license!

On 8/17/08, daniel aguilar <dafsoft at> wrote:
> Please STOP SENNDING ME THIS SHITT!!!!!!!!!!!!!!!!        YOU NERD
> MOTHERFUCKERS!!!!!!!!!!!!!!!!!!
> 2008/8/17 Tzeng, Nigel H. <Nigel.Tzeng at>
>>  >*From:* Ben Tilly [mailto:btilly at]
>> >I therefore find it hard to believe that anyone who has read the
>> >decision could fail to understand that precedent was *not* ignored.
>> I might ask for clarification to understand why they state what they
>> stated since I gathered from his post that he read the decision.
>> He could, of course, be wrong.
>> >When added to the repeated comments that say that the open source
>> >community should want the exact opposite of what most in that
>> >community do, in fact, want, I had to ask whether the post was
>> >intended to generate hostile responses rather than useful dialog.
>> I found this paragraph to be interesting:
>> "The CAFC's Jacobsen decision unwittingly attempts to radically change
>> the risks of licensing software.  The CAFC states that any failure to
>> comply with a license provision that the license even generally calls
>> a "condition" is an infringement rather than a breach.  Thus, any
>> licensee that violates the "conditions" of a license, even if
>> unintentional, is subject to infringement damages."
>> I don't know if the analysis is correct but if so I would find it not
>> entirely
>> euphoric.
>>  That there was a certain bias was obvious when the terms "Mr. Moglen
>> and his followers" and "wishful thinking" was used.   It's always useful
>> to understand where folks are coming from when evaluating what they
>> say/write.
>> That said, Mr. Moglen does have a position and followers that are not
>> always aligned with open source but the goals of the FSF.  There are
>> important differences between the two.
>> I read what Mr. Moglen writes with great interest but I keep in mind
>> two things:
>> 1) He's an advocate for a certain position and not just a lawyer.  This
>> position is somewhat similar but not identical to my own.  Therefore
>> certain strategies are good for him but not necessarily good for me.
>> That's okay, of course, since he's not my lawyer.  Neither is he the
>> lawyer for the OSF.
>> 2) In his profession, reality is whatever he can convince a judge to
>> say is reality.  Therefore he can argue with complete sincerity and
>> conviction that reality is X if he believes he has a strong enough
>> case to have X upheld.
>> Even if !X can also be argued with complete sincerity and conviction
>> by a different lawyer for the same reasons...
>> In our profession, reality is whatever we can convince our compilers
>> to accept as reality. :)
>> >To complete the analogy your professional opinion should be
>> >diametrically opposed to all other publicly available information, and
>> >your opinion should repeatedly say that people don't want what they
>> >say they do, and do want what they say they don't.
>>  I wonder sometimes if we really understand what we want from a legal
>> perspective.   I read this more as a "beware what you ask for" kind
>> of warning.
>> As in "we got our victory but it comes with some baggage".
>> >My understanding is that software copyright holders enjoy the exact
>> >same rights as other copyright holders.  The difference is that in
>> >software we tend to use copyrighted material in different ways.
>> Some lawyers disagree with respect to EULAs, licensing vs ownership,
>> etc.  Perhaps Jacobsen v. Katzer is not a good example of this.  I was
>> following the Blizzard case with more interest.
>> I look forward to Marc Whipple's assessement of the OP's piece.

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